Wednesday, February 27, 2008

Last Friday, we noted that a debate is brewing over the propriety of trying to resolve cases using DNA dragnets or sweeps; that is, taking a DNA sample via cheek swab from every arrestee and then comparing these to the unknown sample int he unsolved case.

The giving of the sample is supposed to be voluntary, as the current law in Florida only allows for mandatory samples from those convicted. "Supposed to be voluntary" is the operative phrase:

In a training video by the Police Department on how to swab suspects' mouths for DNA samples, the training officer describes how to do the procedure and asks the suspect to sign a consent form only after the swab. That's not legal. The suspect must give consent first, otherwise the swab violates the suspect's rights.

The training officer in the video committed another blunder. "If the subject refuses the form," he says, "note on the form that they've refused, go ahead and tag the evidence anyway." There ought to have been no evidence to start with if the subject refused to sign the form. After The News-Journal reported the training video's errors, Daytona Beach police Chief Mike Chitwood conceded that those aspects of the video were a mistake.

What if there'd been no news report?

And there within this closing question lies the point, as well intentioned as law enforcement may be in trying to solve a pending case, they simply can't be trusted to be guardians of constitutional rights of innocence individuals. But aside from the costs to the rights of the citizenry, what about the actual financial costs:

The dragnet raises more troubling questions than it answers. At $200 to $500 for each DNA test, who'll foot the bill in a period of budget reductions across the state? (Daytona Beach arrested 11,000 people last year. Assuming that half had consented to DNA swabs, that's $1.1 million to $2.75 million in DNA tests.)

For financial and constitutional reasons, it is imperative that law enforcement is properly trained to narrow the range of people that find themselves in this DNA net by allowing for consent before the taking of the sample and destroying the sample when the person is determined not to be the unknown perpetrator.

When I started reading the bill, I started to get a bit giddy because of the comprehensive nature of the services provided by this plan. HB 1025 goes further than the previous bills to offer a standard amount of money ($50,000) per year of wrongful incarceration, 120 hours of tuition at a state college or university, a process for expunging of criminal records as it relates to the wrongful conviction, and reimbursements for psychological services and health insurance premiums. It is far more extensive than previous attempts since 2005 which limited exoneree compensation to a standard amount of money ($50,000) per year of wrongful incarceration, 120 hours of tuition at a state college or university, and a formal apology (although SB 756, filed this year by Sen. Arthenia Joyner (D) and which is principally support by the Innocence Project of Florida, includes payment of $100,000 for every year of wrongful incarceration).

My giddiness turned to exasperation when I read the rest of the HB 1025. It became clear that while this bill would provide much, none of the array of services available could be obtained by any of Florida's nine DNA exonerees, because they are all excluded under the plain language of the bill.

You read that right: The House Republican leadership has put forward a compensation bill that would not compensate any known Florida DNA exonerees!

So how does it exclude these deserving individuals? The principle exclusion in the bill is a so-called "clean hands" provision, which excludes from compensation anyone with a felony conviction prior to their wrongful conviction. This is their reasoning:

Republican leaders in both chambers say they want the bill to prevent released prisoners with prior felony convictions from being entitled to the automatic compensation. That means people like Crotzer, who was previously convicted in 1981 for stealing a case of beer, wouldn't qualify for automatic compensation under the proposed legislation and would still have to petition the Legislature.

"There doesn't appear to be a huge appetite from the public to give money to folks who have a rap sheet," Bogdanoff said. "It's not going to help everybody, but it's geared toward those people whom the public is most offended by government's wrongful action."

Yet, they go on to say that they are going to compensate Al Crotzer through a separate vehicle, despite his previous felony for stealing beer from a store. Al is totally deserving and has put in the hard work to win over legislators. But their protests about not wanting to pay people with a rap sheet ring hollow when they are willing to pay those with a rap sheet who they get to know and deem to be a "good" person. Let us not forget that it was only a year ago that two committees in the Senate and one committee in the House were not concerned about clean hands when they voted unanimously to pass a similar bill with no clean hands provision at all. I guess they were for a fair and equal method for compensating exonerees before they were against it. (Note: In response to the concerns about paying multi-time felons who later get wrongfully convicted for a separate offense, IPF took the initiative and crafted the narrower clean hands provision that exists in SB 756).

Nevermind the fact that in 75% of cases nationwide where DNA later proved innocence, a witness misidentification contributed to the wrongful conviction. You can probably guess how law enforcement had those individuals' pictures or knew their identities to stick them in a live lineup to be misidentified; because they had a previous conviction.

What is most pernicious about this provision is that it implies that exonerees, who have spent decades in prison for someone else's crime and have fought like hell in horrible conditions to prove their innocence when no one would listen, are somehow at fault for their wrongful conviction and incarceration. This clean hands provision is nothing more than a good old fashion immunity clause. It allows the State of Florida to wrongfully convict people with impunity; with virtually no consequences for its actions.

House and Senate leaders agree they want . . . an automatic process that would make it easier for those who have been wrongly convicted to collect some compensation, without petitioning the Legislature year after year.

This sounds like a great idea, but how does creating a uniform, automatic system that pays no one fulfill this stated purpose? How does it meet the stated end if we simply kick everyone back over to the annual claims bill process, which lacks in uniformity or fairness among exonerees and which favors those who can obtain good counsel? These are questions that the proponents of this clean hands provision should be made to answer.

The struggle for an exoneree compensation bill is in its fourth year. The legislature knows it has to pass something this year in light of its failure to pay Al Crotzer two years running on the backdrop of the speed in which it paid Wilton Dedge in 2005. But instead of showing leadership in crafting a bill that demonstrates fairness and compassion for all exonerees and responsibility for wrongful convictions, all we get is a cynical attempt to gain the political capital that comes along with passing a compensation bill while merely creating an illusory scheme that pays no one. Call it the height of cynicism or smoke and mirrors or even bait and switch. Whatever you call it, it is a disappointment and a failure on the part of the State of Florida. It is our hope that when the Senate files their bill this week, it will be substantially better and that the leadership of both houses will be a willing partner with the Innocence Project of Florida to do better for Florida's exonerees.

This past Friday, the Second District Court of Appeal overturned the conviction of Michael Mordenti for a 1989 contract murder. The St. Petersburg Times has the goods:

Before he committed suicide, Larry Royston told his attorney that prosecutors had charged the wrong man with killing Royston's wife in a 1989 murder-for-hire plot.

But three separate juries never heard his claim.

Twice, St. Petersburg used car dealer Michael Mordenti was convicted of taking $17,000 from Royston to carry out the hit.

The Florida Supreme Court overturned the first conviction, saving Mordenti from death row. A second trial ended with a hung jury, and a third trial brought a life prison sentence with the possibility of parole after 25 years.

On Friday, the testimony jurors never heard won Mordenti his fourth shot at redemption.

In a 2-1 decision, an appellate panel overturned his conviction, saying Royston's statements to attorney John Trevena should have been admitted at trial and would exonerate Mordenti if believed by a jury.

This is a huge turn of events in a case that has gotten a lot of attention over the last twenty years while it wound its way through the court system.

IPF generally doesn't do non-DNA cases; those which do not involve biological evidence that can be tested for DNA. These cases generally involve witness recantations, the non-disclosure of exculpatory evidence by the prosecution, and other non-DNA-related newly discovered evidence claims. While it is our wish to move into this area, we have our hands full with DNA cases and the money is just not there to perform the intense investigation that is necessary to represent an inmate in a non-DNA innocence case.

Kudos to Marty McClain, who is representing Mr. Mordenti. Mr. Mordenti is now 66 years old and has been in prison since his first conviction in 1991. We'll keep you updated as the events of the newest trial unfold.

Friday, February 22, 2008

The Daytona Beach News Journalstrikes again with a great editorial on injecting greater reliability into witness identification procedures, specifically live witness lineups:

One of the easiest, and potentially most effective, fixes involves a simple tweak to a basic police tool: the lineup. This practice -- in which police actually line up a row of people, or display a set of photographs and ask a witness to identify one as the criminal -- is subject to flaws, particularly when the officer administering the lineup knows who the suspect is. Even though the officer might not intend to taint witness identification, it happens, through subtle "tells" such as fleeting changes of facial expression.

The solution is to remove that officer from the lineup process, substituting another officer -- one who has never seen the suspect and doesn't know who the ringers are. This procedure, called a "double-blind" lineup, is the best way to ensure that eyewitness IDs are as accurate as possible. In addition, police should take care to ensure that all subjects in a lineup are as physically similar as possible.

These two fixes are simple. They require no new technology and, because they simply substitute one officer for another, little extra police time. Moreover, they're fully supported by irrefutable research. (Research behind a third reform, which would change the way lineups are administered so that a witness considers only one suspect or photograph at a time, shows conflicts and needs further work).

Witness misidentification contributed to roughly 75% of the 213 wrongful convictions nationwide that were later overturned through the use of DNA testing. While the need for reform is great and the fixes not too difficult, it is very unfortunate that there is still a strong push back by law enforcement.

The Florida Times Union ran an article on adjustment of Chad Heins to home life in Nekoosa, Wisconsin after his long-sought exoneration out of Jacksonville, Florida in December 2007:

But for Chad Heins, everything changed. Like a modern-day Rip Van Winkle, he returned to a strange new world of cell phones, e-mails and DVDs. Even the multiple buttons on his parents' TV remote control baffle him.

His relationship with his brother, once close, is shattered, perhaps beyond repair. He's learning how to be a dad to two teenagers without the benefit of watching them grow up. A simple trip to Wal-Mart is an adventure.

"You don't walk that close to people in prison," he says.. . .

But for now, Heins chooses to bask in being there, rather than obsess over the lost years or how the story might end.

. . .

"You don't realize how good it is to be home until you get it all snatched away," he told the Times-Union as he relaxed at the dining room table noshing on brats and cheese curds.

Chad seems to be adjusting well and is enjoying his family. What is most disconcerting is how his case is seemingly becoming a political football in the upcoming State Attorney race back in Jacksonville, Florida:

But Heins also admits to some concern about what will happen to the case if Angela Corey, one of the prosecutors in his case, is successful in her bid to replace Shorstein this year.

"I don't know what I done to her, but she hates me," he said.

Corey said his fears are well-founded. If elected, she said she will review the evidence to see what's changed since she left the State Attorney's Office in 2006, but she would re-charge him with the evidence that exists now. She reasons that jurors knew about unidentified hairs from another man on Tina's body, and they convicted Heins anyway.

Her opponent, Chief Assistant State Attorney Jay Plotkin, said although the case remains open and Heins is a suspect, "people deserve better than prosecution by politics." He said arguments Corey made to jurors in 1996 about stray hair being transferred from a used mattress couldn't be made now in light of the additional DNA evidence.

Some people just never learn. This is the first instance I have ever seen of someone using the retrial of a completely innocent and already exonerated individual as a campaign slogan. Especially in light of the fact that there is semen on the victim's bed, blood from her fingernail scrapings, and pubic hair found on her body that all match the same unknown male perpetrator. Instead of using Chad Heins as a political pawn, they should be concentrating on finding this still unknown murderer.

State governments in the U.S. have been debating the merits and deficiencies in collecting DNA samples from every arrestee. Now Florida has jumped into the mix. In order to solve a string of murders where the police have the DNA of the perpetrator but don't the identity of that person, law enforcement officials in Daytona Beach will be asking anyone arrested, from those picked up for drunken disorderly conduct all the way to the most serious of crimes, to voluntarily submit to giving a DNA sample:

Police have a profile of the killer . . . [b]ut they have no suspects.

It is unusual territory for Florida, which requires DNA samples to be taken only from convicted felons.

This creates a legitimate question about where to draw the line in the sand between valid law enforcement tools to solve crimes and protecting constitutional rights against unreasonable infringement by government.

But DNA isn't a solves-all solution. Without proper safeguards, the collection and banking of DNA samples raises serious issues. DNA databases are expensive to administer and technically challenging to maintain. Collecting DNA data can consume police resources that are better spent on more traditional (and successful) methods of investigation and interrogation. And when police attempt to sample DNA across a broad spectrum of the population, they raise serious civil-liberties questions that can't be easily dismissed.

. . .

The samples are purportedly voluntary. But Public Defender Jim Purdy's skepticism at the coercive nature of the plan is well-founded. Many clients already submit to searches of their cars or homes upon arrest -- even though they're not legally required to do so, he notes. A DNA "search" might seem less troublesome -- one quick swab to the inside of the cheek. But the privacy implications are far more compelling. Once a sample is in the database, it's there for good -- and there's no way to predict how DNA samples may be used in the future. As science develops, the potential to misuse personal information, including the intimate data encoded in each individual's DNA, increases.

The concerns with these so-called "DNA Dragnets" are great. Privacy, accuracy, coercion, human error, malicious conduct are all unfavorable characteristics of this new policy. Moreover, it is not clear that taking DNA samples from every guy who urinates on a building during the annual Bike Week or Daytona 500 is going to do very much to solve murders that have perplexed law enforcement officials up to this point.

But why look at a hypothetical situations when you have a real life example of why DNA dragnets are so dangerous:

[In 2003,] the city of Miami was searching for a serial rapist whose DNA links him to assaults on at least six women. As part of the investigation, police have taken more than one-hundred twenty samples from “volunteers” who either resemble the description of the serial rapist or have been the subjects of a tip police received. As part of the search, investigators stopped Jorge Garcia . . . because he resembled the description of the perpetrator. Mr. Garcia voluntarily gave a DNA sample which did not match the profile of the rapist.

But instead of destroying the sample once Mr. Garcia was excluded, the crime lab ran it through the State DNA databank. To Mr. Garcia’s surprise, there was a cold hit – his profile matched that of a profile extracted from evidence collected from the victim of an unrelated 1996 rape. Garcia was arrested and charged with rape. Officials cited it as an example of how DNA databanks help authorities catch rapists. “Had we not had this massive search for this other offender,” according to the executive assistant to the Police Chief, “we wouldn’t have gotten this guy.”

The day after Mr. Garcia’s arrest, the victim of the 1996 rape came forward to proclaim Mr. Garcia’s innocence. She explained that she and Mr. Garcia has been involved in a long-term relationship, and that the crime lab found his DNA because the couple had consensual sex shortly before she was raped by a stranger. Three days after his arrest, the police dismissed the charges against Mr. Garcia and released him from jail.

And that is where it ended for Mr. Garcia. But imagine if it the victim had died as a result of or since the rape, or was otherwise not available to explain how Mr. Garcia's DNA got on her rape kit? Would the charges have led to a conviction or even a death sentence if the victim had died during the rape?

The consequences of convicting an innocence person combined with the wholesale infringement of one's privacy rights by surrendering your personal biological information to the government for any and all purposes, far outweigh the gain to law enforcement.

Last night, an amicus curiae (friend of the court) brief was filed by the National Association of Criminal Defense Lawyers in the case of Kennedy v. Louisiana (Docket No. 07-343). This questions presented in this case are as follows:

1. Whether the Eighth Amendment’s Cruel and Unusual Punishment Clause permits a State to punish the crime of rape of a child with the death penalty.

2. If so, whether Louisiana’s capital rape statute violates the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty.

The brief provides myriad data that reporting of sexual abuse by and testimony of alleged child rape victims is significantly more unreliable and susceptible to suggestion, coaching, fabrication, etc. than similar testimony given by adult rape victims. Thus, if the death penalty is not a sentence that is proportional or appropriate for the crime of adult rape (see Coker v. Georgia), then it is surely not appropriate under the 8th amendment for the crime of child rape where the reliability of a child victim's allegation is far more suspect.

IPF signed onto the brief for a number of reasons, the most important of which is that Florida still has a law on the books that makes it a capital crime to commit a sexual battery on a child under the age of 12.

Now, let's get one thing straight. Child rape is one of, if not the most, physically and psychologically damaging crimes against a victim. Yet, we at the Innocence Project of Florida have a responsibility, through policy statements and reforms, to inject reliability into the criminal justice system and prevent increasing levels of unreliability wherever possible. So despite the heinousness of these crimes, the possibility of executing an innocent person exponentially increases in child rape cases and we will not stand for any state providing the ultimate penalty for crimes where the reliability of a guilty verdict can be so suspect.

You can read this brief and others here. The oral arguments will be held at the Supreme Court of the United States on April 16, 2008.

Thursday, February 21, 2008

In the past few weeks, innocence issues have been the talk of the town on local and national public radio.

On February 4, 2008, NPR's show, Talk of the Nation, did a segment entitled, "What is Owed to the Wrongfully Convicted." Alan Crotzer, who was exonerated in Tampa, Florida on January 23, 2006, took part in the discussion, giving listeners a window into his wrongful conviction, his years in prison, and his continuing fight to put a comprehensive system in place to compensate him and others like him for the years that the State of Florida took from them. Also appearing were Barry Scheck, co-director of The Innocence Project in New York, and Rep. Ellyn Bogdanoff, Florida legislator who has proposed a compensation bill that provides many much needed services, but unfortunately excludes most of the present and future exonerees, including Alan Crotzer. You can find info on the program and listen to it here.

On February 20, 2008, I appeared on Florida Public Radio, out of Miami, Florida, on a show regarding innocence and the death penalty. You can listen to the show here.

Monday, February 4, 2008

While we don't have any polling on the issue of compensation for exonerees, every time I talk to an average person, Floridian or otherwise, about what the Innocence Project does and how much torment these innocent individuals endure, their general response is, "if this person spent 24 years in prison for a crime they didn't commit, doesn't the state provide them any restitution?" And to their utter amazement, the answer in Florida is unequivocally no at the moment.

The editorials that appeared in the last week urging key Florida governmental officials to pass a comprehensive compensation scheme in 2008, are just a representation of the overall feeling in the general public on this issue.

We certainly appreciate the words of support from leaders of the Florida Senate and the Governor, but words alone don't pass legislation nor do they provide much consolation to innocent men who have missed their mother's funeral or their children growing up while they were wrongfully incarcerated. It provides little solace to men who had to fight like hell for decades just to have their protestations of innocence heard only now to have to fight just as hard in the free world to get the state to simply acknowledge through payment that they often get it wrong.

Words alone are not enough. What is so sorely needed is action. This is the fourth year that the Innocence Project of Florida is pushing a comprehensive compensation bill. How many more years must exonerees wait? How many more governors , Senate Presidents, or Speakers of the House must enter and exit the doors of Florida government before real leadership is shown on this important issue of human rights? At what point will the governmental gatekeepers give the proper financial recompense to these men so they can begin to look forward to the rest of their freedom instead of having it continually ruined by having to relive the hell of wrongful incarceration every minute of every day?

It is my hope that this is the year it happens for Al Crotzer, the others devastated by state action who are also waiting, and those who will absolutely come after them. This hope is, unfortunately, dependent on others who hold the power to make it happen. With any luck these decision-makers will realize that the public is ahead of them in realizing that compensating those who we wrongfully incarcerate in the public's name is a moral imperative. With any luck, 2008 will be the year where actions back up words and the waiting which seems endless, finally ends.

In the last week, three of Florida's largest newspapers have stepped up to the plate and affirmed the opinion of so many citizens in Florida: If the State of Florida wrongfully arrests, convicts, and incarcerates an innocent individual, it should have a comprehensive plan in place that fairly compensates that individual for those years of their life taken from them.

Florida exonerees, including Alan Crotzer, exonerated in January 2006 after spending 24 years, 6 months, 13 days and four hours, wrongfully convicted, will again have to essentially beg the legislature to do what most Floridians know is the right thing to do.

For the third year running, lawmakers have a bill before them that would provide just compensation and aid for people freed from prison after proving their innocence. The proposal is relatively modest: $100,000 for every year spent wrongly incarcerated, plus tuition at a state university or college. Lawmakers should add provisions for health care and transition services -- as many states have done -- and then approve the legislation, making it easier for people who are exonerated to start the process of getting their lives on track. Twenty-three states already have similar laws.

In previous years, this legislation has run aground on petty issues. Some lawmakers insisted that people who are exonerated after pleading guilty or no-contest shouldn't be eligible for compensation -- but innocent is innocent, and many people plead guilty to offenses they didn't commit in exchange for more lenient sentences. Other legislators quibbled about the amount: Last year, the bill proposed $50,000 a year for compensation. Either sum would be fairer than the current system, which requires each exoneree to go begging to the Legislature.

Gov. Charlie Crist and Senate President Ken Pruitt have said they support justice for Crotzer, and for those who will follow him. Other leaders should follow suit. It's shameful that lawmakers have taken this long to act, and they should wait no longer.

[S]upporters are committed to getting [Crotzer's] claims bill passed this year, but it makes much more sense to adopt a system of guaranteed payment for anyone similarly harmed.

A bill (SB 756) sponsored by state Sen. Arthenia Joyner, D-Tampa, would be the right step. It provides exonerated inmates $100,000 for every year of wrongful incarceration . . . [and] also offer the wrongfully incarcerated free college tuition.

In the past, lawmakers have considered legislation that would have prevented those with a prior felony conviction from receiving automatic compensation. But that approach would exclude highly deserving people such as Crotzer, who had a previous robbery conviction when he was 17 years old. Moreover, people with mug shots in the system and a criminal record are simply more likely to be wrongly identified in a rush to judgment.

Senate President Ken Pruitt, R-Port St. Lucie, says creating some kind of guaranteed compensation system for the exonerated is at the top of his list this year. We also now have a governor who has a strong moral compass on these kinds of issues.

With key state leaders on board, Florida may soon be among those compassionate states that do the right thing toward people it has wronged. Getting this done should be a top priority in Tallahassee.

Ken Pruitt, the leader of the Florida Senate, says compensation for the wrongfully convicted is one of his top priorities this year. . . . Yet a year ago Pruitt prevented Crotzer from receiving $1.25 million offered by the state House of Representatives. The Senate president blamed the rules "process" for stalling the Crotzer legislation, despite the House's willingness to pay up.

. . .

Whether $100,000 for every year is enough or too much should be debated among lawmakers, but it's the right approach because it would fairly compensate victims without creating a sweepstakes for wrongly accused people who believe they deserve even more.

Crotzer can't retrieve the time he lost. He deserves the money, and given the precedents for compensating others falsely imprisoned, lawmakers should see that he gets it.

So three editorial boards have spoken. Will others join them? Will the legislature even listen?